On presidential emergency powers, Congress is AWOL as usual

Brennan Center graphic

The sweeping nature of presidential emergency powers – some of which are so classified we don’t even know what they are – is the direct result of Congress’s inability and unwillingness to fulfill its constitutional role as a check and balance on the executive branch.

The Brennan Center for Justice at New York University put out a major new report last month on the 123 statutory provisions that allow a president to invoke emergency powers. Just days later, Trump began threatening to declare a national emergency to get the military to build a border wall if Congress won’t give him the money to do it. Talk about timing.

At an all-day convening of experts Wednesday devoted to exploring the issue, however, the major villain wasn’t Trump; it was a Congress that has consistently allowed the executive branch to encroach on its powers.

“Congress has become less functional,” said Avril Haines, who served as Barack Obama’s deputy national security advisor and deputy CIA director. “And presidents have moved into the breach.”

Where Congress, for instance, once defended its prerogative to declare war, it has effectively ceded control by allowing three presidents to unilaterally broaden the scope of the Authorization to Use Military Force it passed after the 9/11 terror attacks.

Haines said the AUMF and the two major legislative sources of presidential emergency power — the National Emergencies Act and the International Emergency Economic Powers Act — each qualifies as “a piece of legislation that was intended to pull more power back to Congress but actually ended up giving more authority to the executive.”

It’s a historical fact that American presidents never relinquish powers they or their predecessors have successfully asserted. (See, i.e., Obama Makes Bushism the New Normal, September 3, 2014.)

Haines succinctly explained why: “From the executive branch perspective, if you’re concerned about whether you have the authorities” that you just might need someday, “you do whatever you can to maintain those authorities.”

She acknowledged that such power-hoarding “leads to distortion” of the system of checks and balances. She suggested that Congress step in to make sure emergency powers are time-limited going forward.

Other experts also suggested that Congress provide some guidance on what does and does not qualify as a national emergency – as there’s no such definition now.

Liza Goitein, the co-director of the Brennan Center’s Liberty and National Security Program and convener of Wednesday’s meeting, noted that Trump has put his unique twist on the question of declaring a national emergency.

To the extent that it’s reasonable to grant a president the power to take emergency action, it’s when there’s no time for Congress to weigh in,

But in the current situation, Trump has announced that he is waiting to see if Congress will act before declaring a national emergency on the border to build the wall.

“It gets the entire principle behind emergency powers backwards,” Goitein said

The Brennan Center report focuses on emergency authorities that have been specifically approved by Congress – including two that Trump’s lawyers are said to be eyeing to get the wall built. (Both, however, are too limited to justify such a move, Goitein told the conference.)

But the even scarier-sounding presidential emergency powers, which Goietein addressed in an accompanying article in the Atlantic, are outlined in highly classified draft executive orders, proclamations and messages to Congress called Presidential Emergency Action Documents that presidential aides carry wherever the president goes – so they are one signature (now Trump’s) away from becoming operational. Goitein writes:

PEADS are closely guarded within the government; none has ever been publicly released or leaked. But their contents have occasionally been described in public sources, including FBI memorandums that were obtained through the Freedom of Information Act as well as agency manuals and court records. According to these sources, PEADS drafted from the 1950s through the 1970s would authorize not only martial law but the suspension of habeas corpus by the executive branch, the revocation of Americans’ passports, and the roundup and detention of “subversives” identified in an FBI “Security Index” that contained more than 10,000 names.

Goitein continues:

It will fall to Jeff Sessions’s successor as attorney general to decide whether to rein in or expand some of the more frightening features of these PEADS. And, of course, it will be up to President Trump whether to actually use them—something no previous president appears to have done.

I asked a panel of former senior national security and defense officials at the event whether a declaration of martial law remains among today’s PEADS. And I asked Haines specifically if she had any regrets about any PEADS that Obama left in place, now that Trump is president.

Christopher Fonzone, a former legal adviser to Obama’s National Security Council, waved me off. “I really think it’s going to be tough to talk about the substance of what PEADS are,” he said, citing their classification.

And Haines ducked my question. “I have a lot of regrets in my life,” she said.

Saikrishna Prakash, a University of Virginia law school professor, discussed how today’s presidential emergency powers have almost no historical basis.

The Constitution enumerates a total of three emergency powers for the president, he said:  to make recess appointments, to issue pardons, and to summon Congress back into session.

“If there’s a crisis, Congress should be summoned,” Prakash said of the presidency as originally envisioned.

In short, he said, the presidency is weak, Congress has vast authority, and if the president feels the need to act without congressional authority, he has to ask Congress to absolve him afterward.

Over time, it’s become completely different, Prakash said. “The president claims some sort of vast and unspecified authority to deal with emergency; Congress has delegated that authority by statutes; … and presidents never say they’re sorry.”

What didn’t come up Wednesday was what if anything the public or civil society or the opposition party could do if Trump declares a national emergency with wide-ranging effects — say, if there’s a terror attack, or if he feels particularly vulnerable politically.

Seems to me that someone should organize a teach-in to grapple with that possibility.

Regrets about drone policy are rare among Obama officials, even with Trump now at the helm

Screengrab from Defense Department video of air strike that destroyed the homes of Basim Razzo and Mohannad Razzo, as described in New York Times Magazine article

Trump is why you need limits on executive power Fifth in a series: Donald Trump’s use and abuse of powers bequeathed him by Barack Obama – particularly the power to unilaterally kill people abroad – vividly demonstrates what a mistake it was for Democrats to continue George W. Bush’s expansion of executive power rather than rein it in. But they still don’t seem to get it. See the other articles in the series here.

In November 2017, the New York Times Magazine ran an extraordinary piece of reportage by Azmat Khan and Anand Gopal, called “The Uncounted.” Khan and Gopal found that casualties from air strikes had been underreported by the U.S. government, possibly by a factor of 31.

The story prompted a solemn and pained response from two Obama officials who had been involved in the program: Robert Malley and Stephen Pomper. Unlike other colleagues, they acknowledged that profound, structural change is necessary:

The Times story is one of faulty intelligence driving wrong-headed assumptions that decimate innocent lives and embitter survivors. It is a story about how a legal and bureaucratic fog can make it almost impossible for tragic mistakes to come to light, too often leaving instead a false sense of comfort that such mistakes never happened at all. And it is a story about a policy that warrants honest discussion, and change. We both worked with that policy up close. In the Obama White House, one of us was responsible for human rights, the other for coordinating the counter-isis campaign. In this respect, we were part of an administration that fell short.

Malley and Pomper identified serious structural problems with the U.S. air strikes:

Broad criteria for who or what could be targeted were superimposed upon imperfect systems for identifying those targets, which were exacerbated by the opacity of after-action verification and reparation procedures. All of this was compounded by a natural tendency to give U.S. military operators the benefit of the doubt.

There were safeguards put in place to avoid civilian casualties. But “both of us believe that these steps did not do enough,” Malley and Pomper wrote.

What they recommend is tougher standards to “ensure we err more often on the side of caution” and “acknowledging error” and radical transparency about policy and post-strike assessments.

But even they didn’t call for effective restraints on this power through congressional legislation or judicial oversight. The closest they came was this:

[I]t’s at least worth pondering whether someone from outside the chain of command — possibly from outside the executive branch altogether — should be able to check the Pentagon’s work, bringing the kind of perspective that only comes with distance.

The “honest discussion” they called for never happened. Other Obama officials remained silent.

In fact, the only regret I’ve heard other former officials express about Obama’s drone policy is about transparency.

For instance, Ryan Goodman, who served as special counsel to the general counsel of the Department of Defense, has written that transparency as regards the number of civilian casualties was lacking, and should be improved. But he doesn’t explain why it wasn’t under Obama.

Harold Koh, the noted legal scholar who served as Obama’s first State Department legal adviser, briefly discusses drone policy in his new book. He acknowledges the obvious reason he and his colleagues didn’t feel obliged to strengthen oversight on drones: “The Obama administration anticipated that its work would be carried on by a Hillary Clinton administration.”

He further acknowledges that the rules now appear to be “up for grabs” instead:

It remains unclear how scrupulously these legal and policy rules—particularly the “near-certainty” rules to ensure that civilians are not targeted by drone strikes or other military action—are now being followed by the Trump administration.

But there are apparently no lessons learned. When it comes to reform proposals, Koh simply repeats the same call for more transparency that he issued upon upon leaving the administration in 2013. He writes:

The Obama administration [was not] sufficiently transparent—to the media, to Congress, and to our allies—about the legal standards and decision-making process that it applied to its use of drones. The inevitable release of necessary pieces of the administration’s public legal defense came too little and too late. This spurred a left-right coalition—running from Code Pink to Rand Paul—to speak out against the drone program, fostering the perception that the program was illegal, unnecessary, and out of control. The public lost track of the real issue, which was never drone technology per se, but rather the need for transparent, agreed-upon domestic and international legal process and standards.

So if Obama had just done a better job of explaining himself, Koh argues, the easily confused public would have been fully satisfied. Beyond that, nothing to see here. Move along.

Next in my series on drones: Democrats aren’t even trying to rein Trump in.

Can a president keep official actions secret even from his own staff?


Donald Trump’s unprecedented and deeply suspicious decision to hide the details of his face-to-face meeting with Russian President Vladimir Putin even from his own people presents an interesting thought exercise about the limits of the modern U.S. presidency.

Is he under any obligation, as the leader of the executive branch, to at least inform some other members of the executive branch of what he is doing?

Or is he, as the human embodiment of the executive branch, entitled to take official acts secretly and alone, even if they are potentially against the interests of the United States?

That second option may sound absurd, but it is reflective of the radical constitutional philosophy that has infected the political right (thank Dick Cheney for that) which holds that Article II of the constitution vests “all” executive power in the president himself – not the office, or the executive branch generally.

It’s called the “unitary executive” theory. It requires a pinched interpretation of Article I, which gives Congress its powers. And despite its overlap with “originalism” – which conservatives use to block laws that reflect more enlightened views of the world than those held by white male slaveowners of the late 1700s – it has no basis whatsoever in what the Founders thought. The president was just a “presider” to them. They gave Congress so much power that Alexander Hamilton and others worried that it had too much, not the presidency.

So folks like Trump-appointed Supreme Court Justice  Brett Kavanaugh, writing in a 1998 law journal article, actually believe things like: “The President is not simply another individual. He is unique. He is the embodiment of the federal government and the head of a political party.”

Trump’s pick to be his next attorney general, William Barr, is considered to be an outlier even among the unitary executive crowd. So, for instance, In a memo this past June, Barr agued that any “facially lawful” act by the president — like firing or pardoning someone — cannot constitute obstruction of justice.

You and I might think that our constitutional system is full of checks and balances, and that the president is not above the law. But the unitary-ans believe that Congress has exactly one recourse when it feels the president has gone too far in the exercise of his executive power, and that is impeachment.

Not telling his senior-most officials what he’s doing is, in some ways, not so different from changing his mind without letting them know. As NYU media critic Jay Rosen has been arguing for a while now, “There is no White House, really. Not in the sense that the term has been traditionally used. There’s just Trump and people who work in the building.”

But is the president the alpha and omega of executive power? Or do we have a reasonable expectation that, to some degree, it is a group activity?

‘National emergency’ sounds scary, doesn’t it?

Donald Trump has done very well for himself by sowing fear. Nothing, it turns out, motivates voters more.

And that’s why, I suspect, he is hesitating to declare a “national emergency” to build his border wall.

Our nation’s political and legal elites recognize that declaring a “national emergency” as defined by the National Emergencies Act of 1976 has never been a big deal before: presidents routinely declare them under very specific circumstances, to unlock very specific authorities. Trump has already declared three, all of them blocking the property or imposing sanctions on officials in Nicaragua, Russia and a variety of other countries. There are a total of 32 currently active, according to a great chart by CNN.

“What Congress is really doing here is saying ‘here are special authorities for special cases’,” University of Texas law professor Steve Vladeck said in a conference call organized by the American Constitution Society on Friday.

But Trump, who is savvy about working a crowd, must realize that to ordinary people the term national emergency in a big headline conjures up much scarier images. I’m betting it polls real badly, too.

“When people hear ‘national emergency,’ they think martial law. They think crisis. They think all sorts of horrible things,” Vladeck said.

So where “build the wall” is dog-whistle for “stop brown people from ruining America” for Trump’s base, declaring a much-publicized “national emergency” could well be the spark that sends ordinary people into the streets, panicked about an unhinged president taking the law into his own hands.

For whatever reason, it’s obvious that Trump is conflicted about what to do. His comments about declaring a national emergency have been labored even by his standards.

So, for instance, he told a gaggle of reporters Thursday afternoon: “I have the absolute right to declare a national emergency. I haven’t done it yet. I may do it. If this doesn’t work out, probably I will do it. I would almost say definitely.”

Then he told Sean Hannity a few hours later: “Now if we don’t make a deal with Congress, most likely I will do that. I would actually say I would. I can’t imagine any reason why not because I’m allowed to do it.”

On Friday afternoon, he said at the White House: “The easy solution is for me to call a national emergency. I could do that very quickly. I have the absolute right to do it. But I’m not going to do it so fast because this is something Congress should do.”

Moments later: “What we’re not looking to do right now is national emergency.”

Then he said if House Speaker Nancy Pelosi and Senator Minority Leader Chuck Schumer simply tell him they aren’t going to fund a wall – which they have, several times – that would be a trigger: “And if they can’t do it – if they yell that we can’t do it, ‘there’s no way we can vote for security, there’s no way we can vote for security,’ all Nancy and Chuck have to do is tell me and you know what? We’ll start thinking about another alternative.”

Then moments later, again: “Congress should do this. It they can’t do it, I will declare a national emergency”

Practically speaking, while there is nothing preventing Trump from unilaterally declaring any number of national emergencies, that does not mean he can simply do whatever he wants afterward.

As the Brennan Center’s Liza Goitein explained in an article in the Atlantic that I called attention to last week (because parts of it are quite scary) there are 136 special provisions that become available in different kinds of national emergencies — but they are all very specific and none allow for martial law.

There are two provisions in particular that Trump might use to justify ordering the military to build the wall — 10 USC 2808 and 33 USC 2293 – but even they have such specific requirements that any use of them would inevitably lead to forceful legal challenges.

And while neither the Constitution nor Congress have ever defined what a “national emergency” is – and the courts are notably deferential to the president’s commander-in-chief authorities – presumably some members of the judiciary would be willing to rule that it’s not a “national emergency” just because Congress refuses to go along with the president.